It is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes. Clinics must not undertake or facilitate commercial surrogacy arrangements.

Noncommercial surrogacy (whether partial surrogacy or full surrogacy) is a controversial subject …and is prohibited in some states and territories. In other states and territories, clinics must not facilitate surrogacy arrangements unless every effort has been made to ensure that participants:

have a clear understanding of the ethical, social and legal implications of the arrangement; and

have undertaken counselling to consider the social and psychosocial significance for the person born as a result of the arrangements, and for themselves.

Clinicians should not advertise a service to provide or facilitate surrogacy arrangements, nor receive a fee for services to facilitate surrogacy arrangements.

No provision for transfer of legal parentage

There is no provision to transfer legal parentage following a surrogacy arrangement in the Northern Territory.

Note, that a birth mother is recognised as the legal mother of the child(ren) she gives birth to (in all states and territories of Australia). 1 There is no opportunity to remove her from this status unless she relinquishes the child for adoption.

If the birth mother is married or in a defacto relationship, her partner, if any, will be deemed the other legal parent of the child.

If there was a surrogacy arrangement, there would be no recognition of the commissioning person(s) as legal parent(s) in most situations, and no mechanism to transfer legal parentage to them.

That is, a sperm donor to a child conceived using artificial insemination or ART is not a legal parent under the Act. 2

The only potential situation in which a male (‘commissioning person’) may be recognised as the legal father would be if he was the genetic father as a result of sexual intercourse. He would then have to meet the presumptions under, or make an application for a declaration of paternity pursuant to the ‘Status of Children ActNT’. 3

However, even if this situation did occur, such circumstances may give rise to other legal issues and complexities – see further below.

Some people have said that ‘technically’ commercial surrogacy can occur in the Northern Territory. Is this correct?

It has been suggested that ‘technically’ commercial surrogacy could occur in the Northern Territory in relation to ‘traditional surrogacy’ arrangements.

Such suggestions appear to relate to the [hypothetical] situation in which a man could pay a woman to have sexual intercourse with him with the intention that she become pregnant and then hand over the child to him at birth. This would be done on the basis that he would be recognised as the ‘legal father’ of the said child under the Status of Children Act (NT), and that there are no explicit laws prohibiting commercial surrogacy.

However, stating that such a situation would be ‘technically’ lawful ignores the legal complexities of the matter. For example,

if the birth mother was married or in a defacto relationship, her partner would be presumed to be the legal parent of the child, and the presumption would have to be rebutted in a Court;

even if/when the paternity of the child is established, the birth mother would continue to be the legal mother of the child, and would continue to have legal rights and responsibilities regarding the child. For example:

if the child resided with the legal father, he could claim child support from her;

or, if the mother decided not to relinquish the child, and it continues to reside with her, she could claim child support from the legal father; and/or

family law proceedings could be taken by the birth mother or father claiming rights of visitation or residence orders in relation to the child.

if hypothetically, the man has a partner, and the intention was that the birth mother relinquish the child and the partner of the father would adopt the child, all parties would be in breach of the Adoption of Children Act NT, which prohibits payment or reward for, or in consideration of, the adoption of a child – either before or after its birth. 4

There are also questions about whether such an arrangement would amount to the ‘sale of a child’ under Australia’s international law obligations. For example, in its last report to the the United Nation’s Human Rights Committee, the Commonwealth Attorney General’s Department listed prohibitions of commercial surrogacy in other states as meeting our obligations under international law to prevent the sale and trafficking of children. 5 This could imply the view that when commercial surrogacy occurs, in whatever form, it is in breach of Australia’s obligations under international law.

It is suggested therefore that, at the very least, it is precarious to interpret or suggest that the position in the Northern Territory is one that lawfully allows commercial surrogacy, or one in which ‘technically’ commercial surrogacy may occur. Such a view might lead people into arrangements that are fraught with legal difficulties, and may impact upon women and children (as well as commissioning person(s)) negatively.

People should always seek independent legal advice to determine not only what is or is not lawful, but what the legal impacts and ramifications of certain actions may be.

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